Saturday, October 27, 2012

Lawyer fights for client's life"These
death sentences are cruel and unusual in the same way that being
struck by lightning is cruel and unusual...” Mr. Justice Potter
Stewart, U.S. Supreme Court

Waco
– A very special audience of 6 men and 7 women are witnessing an
exclusive tournament of legal jousting in a local district courtroom.

Though
executions of convicted capital murderers have become routine in
Texas, ordinary items in the routine of unremarkable news days, this
is the first time in 8 years a McLennan County jury has heard a
capital murder case.

The
key elements of conservative legal thinking on the death penalty are
on full display for the 12 jurors and one alternate at the capital
murder trial of one of four accused gangster gunmen who allegedly
shot down two rivals in a surprise attack to avenge the shooting
death of an associate nearly one year earlier.

The
opposing counsel carry out their strategy with similar methods of
surprise.

For
instance, prosecutors suddenly and unexpectedly rested their case
early in the day Friday.

The
trial will resume Tuesday after 19th
Criminal District Court Judge Ralph T. Strother, who said he was just
as surprised as the defense team, gave the attorneys some time to
prepare their case.

Walter
Reaves, co-counsel for the defense, said the move was totally
unexpected and caught the defense team of three seasoned attorneys
completely by surprise. Mr. Reaves is involved in other cases with
the Innocence Project run by New York attorney Barry Scheck, which
often clears men falsely accused and convicted of crimes they did not
actually commit, by using DNA analysis.

Lead
defense attorney Russ Hunt, Sr., is a member of the State Bar College
of defense counselors who promulgate the continuing education program
for lawyers who defend criminal defendants.

Prosecutors
led by Michael Jarrett, delivered a classic right jab, left cross and
right uppercut combination when they presented the testimony of a
woman who claims to have seen one of the murder weapons – an
assault rifle – and a fearful young man who said he heard the
defendant, Ricky Cummings, say he was about to shoot someone.

A
retired Dallas police detective who is now a custodian of telephone
records presented evidence of cell phone calls and text messages sent
and received at the time of the March 28, 2011, shooting ambush that
left two men dead and two others severely wounded at Lakeside Villas
apartments in east Waco.

Yet
another witness testified earlier that an uncle of the accused gunman
threatened her, an offense for which the man is languishing in the
McLennan County Jail. The following morning, she found her tires
slashed when she made ready to come to the courthouse and give her
testimony.

Tensions
are running high between two extended families of African-Americans
who are forced to sit on opposite sides of the courtroom, prohibited
from carrying cell phones for fear they might take pictures of jurors
in an effort to intimidate them, and constantly surveilled for signs
of impending hostility.

In
the midst of all this drama, the rival prosecution and defense teams
are engaged in the sweet science of the joust, the boxing ring and
the debate, that of keeping the opponent off balance and moving in
reaction to an aggressive game of proactive attack and thrust, parry
and blockade.

At
the heart of the matter, a peculiarly Texan conservative philosophy
that swift and sure retribution is the single greatest deterrent to
vicious and violent behavior that leads to the murder of public
officials, children, more than one person at a time, or committed
for profit, with premeditation, or in retaliation.

The
Texas track record speaks for itself. Since the U.S. Supreme Court
allowed a reinstatement of the death penalty as other than cruel and
unusual punishment in 1976 when it handed down Gregg v. Georgia,
Texas has executed by lethal injection more than 480 convicted
murderers, while the much more populous state of California has
carried out the death penalty only 13 times.

Many
legal scholars point out that not only is the entire top tier of
Texas appeals courts decidedly Republican and politically
conservative, but the United States 5th
Circuit Court of Appeals, which sits at New Orleans, is much more
Republican and conservative than that of the 9th
Circuit at San Francisco. Republicans have occupied the Governor's
office since the year 2000, when President George W. Bush unseated
liberal Democrat Ann Richards in a landslide victory before going on
to the White House.

Nearly
the entire first day of evidence and testimony presented on Monday,
October 22, concerned another crime, the shooting death of Emuel Lee
Bowers, III, which occurred in April of 2010.

Prosecutors
sought to get into the record evidence that the motive for the
offense for which the first of the four defendants is facing the
death penalty was retaliation for the earlier killing of another
victim.

The
defense team did not protest as to its relevance. Seasoned defense
lawyers in close observation of the trial were of the united opinion
that Mr. Hunt chooses not to cloud the issues or confuse the jurors
with ill feelings over constant objections, preferring to remain calm
and sanguine in the best interest of his client, whose life depends
on a single impression yet to be created in the minds of the jury.

The
question at hand, should they find “beyond a reasonable doubt”
that Ricky Cummings caused the death of two human beings, is if he
would present “a continuing threat to society” if he is allowed
to live the remainder of his life behind bars without the possibility
of parole.

Society,
each juror was assured during the jury selection phase of the trial,
includes corrections officials, civilian staff members, and other
inmates of the Texas Department of Corrections Institutional
Division.

To
comply with the Supreme Court decision, Texas juries who recommend
the death penalty are required to answer two questions in the jury
charge prepared for the punishment phase of capital cases in exactly
this way, and no other.

According
to an on-line discussion of the matter: The first question
is whether there exists a probability the defendant would commit
criminal acts of violence that would constitute a "continuing
threat to society". "Society" in this instance
includes both inside and outside of prison; thus, a defendant who
would constitute a threat to people inside of prison, such as
correctional officers or other inmates, is eligible for the death
penalty.

The
second question is whether, taking into consideration the
circumstances of the offense, the defendant's character and
background, and the personal moral culpability of the defendant,
there exists sufficient mitigating circumstances to warrant a
sentence of life imprisonment rather than a death sentence.

If
the person was convicted as a party, the third question asked is
whether the defendant actually caused the death of the deceased, or
did not actually cause the death of the deceased but intended to kill
the deceased, or "anticipated" that a human life would be
taken.

In
order for a death sentence to be imposed, the jury must answer the
first question 'Yes' and the second question 'No' (and, if convicted
as a party, the third question 'Yes'). Otherwise the sentence is life
in prison.Russ
Hunt laid back and waited to make his move until prosecutors elicited
testimony from the first eye witness to testify that she saw the
defendant at the scene of the murders, gun in hand, struggling to
clear a jammed spent cartridge casing from its firing chamber as he
confronted her face to face in pursuit of two wounded men who had
fled into her apartment, bleeding.Mr.
Hunt began his cross examination of Nickoll Henry, who suffered a
grazing bullet wound to her leg when a round from a high-powered
assault weapon penetrated the brick wall of her apartment where she
lay dozing on a couch, by quizzing her about her record of past
convictions for theft by credit card and aggravated assault.She
is court-ordered to psychiatric treatment for paranoid schizophrenia
and post traumatic stress disorder, as are her children. She
neglected to testify as to her treatment for borderline personality
disorder, he pointed out.At
that point, Mr. Jarrett, who was lead prosecutor at Dallas County and
at ultra-conservative Williamson County, bounced out of his chair as
if it had become red hot. He objected that the testimony was
irrelevant and prohibited by the Texas Rules of Criminal Evidence.After
two brief hearings out of the presence of the jury, Judge Strother
allowed the testimony into the record exclusive of the facts of Ms.
Henry's mental diseases and the exact nature of the revocation of her
probation status on suspended sentences for theft and assault.Once
testimony resumed, Mr. Jarrett asked on redirect, “Ms. Henry, how
long have you been treated for blindness?”Exasperated,
she thought hard for a moment, then said she is not under treatment
for blindness, that's she's never been blind, to the uproarious
laughter of the gallery.Even
the judge smiled.The
only persons present in the courtroom who did not break a smile were
jurors. They sat stone-faced, taking it all into consideration,
knowing the task before them won't be made any easier by their
laughter.One
would have been hard-pressed to even glance at the visage of Ricky
Cummings, a man fighting to get a chance to live out the rest of his
life behind bars.